Tuesday, March 29, 2016

Many writers have criticized the Supreme Court and its justices for being out of touch with the American public. Many individuals have written articles on the topic which discuss the bench's lack of socio-economic diversity, the lack of diversity of experience, the lack of religious diversity and the lack of educational diversity. All of these factors lead to nine justices who often appear to be unable to grasp the day-to-day lives of American citizens (especially when those individuals are poor, women, or members of a minority). This separation between the Ivy League educated justices (specifically the male justices) and the American citizenry has been especially visible in the past several weeks in the oral arguments for Whole Woman's Health v. Hellerstedtand Zubik v. Burwell.

Whole Woman's Health v. Hellerstedt is a challenge to Texas' HB2 law which supposedly is designed to "protect women" (these quotation marks do not indicate an actual quote but are instead used to suggest the fallaciousness of the government's reasoning). What this bill actually does is close approximately 75 percent of Texas abortion clinics.

Zubik v. Burwell challenges the Affordable Care Act's contraception mandate. While many thought that this matter was (wrongly) decided in Burwell v. Hobby Lobby, Zubik involves religious nonprofits challenges to the current accommodations made by the Obama administration. These accommodations allow religious objectors to opt out of providing coverage for contraceptives in their health care plans by either filling out a form or sending in a letter expressing their religious objections. The challengers claim that even filling out these forms infringes on their religious beliefs.

Both of these cases obviously have great implications for women, and specifically women's health. It is this concept that the male justices often cannot seem to quite grasp.

In Whole Woman's Health, Justice Kennedy questioned the challengers about whether there was any actual evidence that the state law actually imposed true burdens on women. Chief Justice Roberts and Justice Alito questioned whether there was evidence to show that the closure of clinics was actually related to HB2. So, despite the fact that 75 percent of clinics have closed since the law took effect, apparently several justices are unsure about this correlation, or more specifically, causation. Additionally, at least Justice Kennedy seems to be unable to understand how these laws burden not only the abortion providers but the women of Texas as well (despite how obvious this likely seems to most of us).

In Zubik v. Burwell the male (and conservative) members of the Supreme Court do not understand how the health insurance market actually functions. Chief Justice Roberts, Justice Kennedy and Justice Alito appear to suggest that forcing women to find another way to get their contraceptives covered is not actually that big of a deal because they can access birth control through federal insurance exchanges. "They're on the exchanges, right?" Roberts said. Thankfully, Justice Sotomayor stepped in an explained that no, "[t]hey're not on the exchanges...That's a falsehood." However, even after this explanation that no, there is no such thing as a contraceptive-only policy, Kennedy and Roberts were still unable (or unwilling) to grasp how exchanges work and how they would affect the ability of women to gain access to birth control. Indeed, Kennedy expressed the belief that it is "so easy" and "so free" for women to sign up for a birth control only plan.

So, not only do many of the Justices not understand insurance policy markets, they also are unable (or unwilling) to understand the burden this places on women who are trying to access free and affordable birth control (and yet requiring an organization to simply fill out a form is somehow unworkable and inexcusable difficult). The male justices inability to grasp simple facts about insurance and women's health illustrates a larger issue that often appears not only in the judicial branch, but also the legislative and executive branches. When our country's judges and government officials are largely wealthy, white males, they do not have the ability to experience how many of the laws and rulings they enact affect real people's day to day lives. While the Supreme Court is filled with brilliant legal scholars who are able to understand and shape our most complex laws, I also wish that they were able to grasp the more simple and personal results of such rulings.

2 comments:

Your post made me think about a slightly different (but related) topic. A recent NYT article (link below), The Tampon of the Future discussed the difficulty a team of scientists faced in finding investors to support a medical device that tests for diseases using the blood from women's tampons (spoiler: men don't care about products that don't help men). The article went on to discuss how first, virtually all tampons and pads are designed by men, and second, in the past men seemed to completely disregard the designs/features women preferred in their tampon/pad designs.

The justices can't understand how women's healthcare operates or how difficult it is to access health plans and services. There seems to be a widespread problem of male disengagement when the treatment/produce/service in question is only geared towards women.

Do women have to frame the birth control/abortion conversation as a men's issue in order to be taken seriously? I am not sure how that is possible, and without male buy-in, it seems like "women's issues" will continue to be misunderstood and minimalized.

Another layer of misunderstanding about birth control coverage might extend to the actual science of how it affects women's bodies. If the male SCOTUS Justice's think its 'so easy and so free' for women to access birth control pills, they probably aren't thinking about whether these subsidized hormones are the best fit for each woman. Rather than popping a magical, one-size-fits-all, Have Sex Baby-Free pill (if a pill is the birth control method of choice), women are actually putting hormones into their bloodstream. These hormones are measured differently in different pills, and affect every woman's body in different ways. I've had terrible experiences with birth control pills that weren't right for me. Just because there may be a free birth control option from a state sponsored agency doesn't mean it will work for everyone; personalized care with one's PCP is the best way to access birth control, and including coverage in insurance policies allows women to do this. It's frustrating enough to be the only gender that has to worry about the physical consequences of being sexually active; its absolutely unacceptable that my choices for taking care of myself could be affected by a man who doesn't know how the treatment works because he doesn't have to worry about it.